Civil vs. Criminal Bartender Liability in Drunk Driving Accidents

Drunk driving rates have plummeted for decades in Canada, but impairment continues to be a major risk factor on our roads, as car accident lawyers know. Considering the time, money, and effort stakeholders have put into anti-drunk driving campaigns, when impaired driving accidents dooccur there tends to be significant public outcry. Community members want to know who is responsible.

The question of responsibility for drunk driving accidents doesn’t always come with easy answers. Yes, the individual who chose to get behind the wheel bears significant liability – but did they act alone? Were they overserved at a friend or relative’s house? Did they visit a bar or restaurant before driving? What happens if the driver is under the legal drinking age?

Some of these questions were asked following a single-vehicle impaired driving accident in 2017 near Ottawa that left two teenagers dead and another two seriously injured. All four had been drinking at Shooters’ Bar and Grill in Calabogie, Ontario, before the crash.

In 2018, 62-year-old Ann Senack, who served the boys at the establishment, was charged with two counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm. The trial began this spring.

According to legal experts who spoke to Canadian Underwriterin 2019, criminal charges against bartenders related to drunk driving accidents are notoriously hard to prove.

“To extend criminal liability in these circumstances is very, very uncommon,” said Michael Lacy, president of the Criminal Lawyers’ Association. “If someone were held criminally culpable in these circumstances, I’d say that would be a precedent-setting decision.”

Another criminal lawyer told the publication that prosecutors would have to prove that there was a “marked and substantial” departure from the standard of care that servers owe patrons.

‘Prosecutors would have to show a bartender knew the person they were serving was clearly underage, and knew the person was driving home and was impaired to such a degree that it would be a danger to them and to others,’ Canadian Underwriter reported. ‘The Crown would also have to show a direct link between the alcohol served to the person and the injuries caused.’

Sure enough, Crown attorney Jefferson Richardson announced last month that charges against Senack would be stayed after cell phone records showed that the driver of the vehicle was using his phone at the time of the accident. Instead of facing jailtime, the server agreed to a 10-year peace bond and will pay $10,000 and perform 300 hours of community work, according to CBC News Ottawa.

However, the CBC also reported that several civil cases against Senack are pending – and the threshold for proving civil negligence is much lower than in criminal cases.

In order to establish negligence in a civil case, plaintiff-side lawyers most only prove that it is more likely than not that the bartender breached their standard of care.

“Those two things – one being the higher standard for criminal negligence, and the higher burden of proof in a criminal case – means that the viability of this type of prosecution is often minimal, which is why most of these cases are dealt with in the civil courts,” the criminal defence lawyer told Canadian Underwriter.

How Can Will Davidson’s Car Accident Lawyers Help?

In Ontario, there are several ways to pursue compensation for car accident injuries. The first and simplest is via accident benefits through your insurance provider. When a driver is involved in an accident in our province, their auto insurance entitles them to predetermined benefits based on the severity of their injuries. These benefits are often sufficient to cover any expenses and damages that arise from your accident.

In some cases, though, accident benefits may not be enough to address the serious injuries you have sustained. If you were not at-fault for your accident, or if liability can reasonably be shared by another party, you may be able to pursue a civil claim for damages with the help of our car accident lawyers. Impaired driving injuries precipitated by negligent bar or restaurant service is an example of a situation where a civil claim might be appropriate.

If you or a member of your family have been involved in a motor vehicle accident involving an at-fault party, consider contacting Will Davidson LLP today to schedule a free, no-obligation consultation with our team of car accident lawyers. We will be happy to assess your claim and explain your legal options.

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Are liability waivers a thing of the past?

For active Ontarians, liability waivers are a fact of life. If you’re a member of a fitness centre or recreational sports leagues, or enjoy participating in outdoor activities or visiting amusement parks, you’ve probably filled out a large number of waivers that aim to reduce companies’ risk of being held liable for your injuries.

But how much power do liability waivers really hold? Do they fully exempt businesses from liability? Can a personal injury lawyer help you, even if you’ve signed one?

In early 2017, Justice J.R. McCarthy of the Ontario Superior Court came to a decision that could change the way waivers are treated in the province.

Woodhouse v. Snow Valley Resorts

Elizabeth Woodhouse visited a ski facility run by Snow Valley Resorts in December 2008. She bought a beginner ski package, which included a lift ticket, rental equipment, and a lesson. The lift ticket included a liability release, and she also signed a “Rental Agreement & Release of Liability” containing a section titled “Waiver of Claims.”

Woodhouse was injured during her stay, hired a personal injury lawyer, and sued Snow Valley for injuries and loses.

During the trial Snow Valley Resorts acknowledged that it did not fully explained the waiver to Ms. Woodhouse, who in turn admitted that she reviewed its wording on the company’s website prior to her trip.

Because Woodhouse had signed both the lift ticket release and the Rental Agreement & Release of Liability, Snow Valley Resorts asked Justice McCarthy to dismiss the case. McCarthy disagreed, and ordered that the case proceed to trial. The Justice argued in his decision that Ms. Woodhouse was a consumer entitled to protection under the Consumer Protection Act (CPA).

Section 9(1) of the CPA dictates that “a supplier of services is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality,” and section 9(3) states that parts of consumer agreements that attempt to negate this implied warranty are void.

In other words, “a supplier of services cannot contract out its duty to provide services of a reasonably acceptable quality,” explained Kris Bonn in an excellent blog post for the Ontario Trial Lawyers Association. “That is, those parts of a waiver that limit or negate a supplier’s duty to provide safe service – which would be included in the terms “of reasonably acceptable quality” – will have no force or effect.”

The ruling is good news for injury victims and their personal injury lawyer. Does the fact that Justice McCarthy sent the case to trial mean liability waivers cannot be enforced in Ontario? Not quite. But it does guarantee that individuals who suffer an injury as a result of a supplier’s negligence will be able to pursue compensation for their injuries, regardless of having signed a waiver.

If you or a member of your family has been injured, you may be entitled to compensation. Contact a personal injury lawyer at Will Davidson LLP today to find out how we can help.

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